Speech in Congress on the Jay Treaty
April 6, 1796
When the message was first proposed to be committed, the proposition had
been treated by some gentlemen not only with levity, but with ridicule. He
persuaded himself that the subject would appear in a very different light to
the committee; and he hoped that it would be discussed on both sides,
without either levity, intemperance or illiberality.
If there were any question which could make a serious appeal to the
dispassionate judgement, it must be one which respected the meaning of the
constitution; and if any constitutional question could, make the appeal with
peculiar solemnity, it must be in a case like the present, where two of the
constituted authorities interpreted differently the extent of their
respective powers.
It was a consolation however, of which every member would be sensible, to
reflect on the happy difference of our situation, on such occurrences, from
that of governments, in which the constituent members possessed independent
and hereditary prerogatives. In such governments, the parties having a
personal interest in their public stations, and being not amenable to the
national will, disputes concerning the limits of their respective
authorities, might be productive of the most fatal consequences. With us, on
the contrary, although disputes of that kind are always to be regretted,
there were three most precious resources, against the evil tendency of them.
In the first place, the responsibility which every department feels to the
public will, under the forms of the constitution, may be expected to prevent
the excesses incident to conflicts between rival and unresponsible
authorities. In the next place, if the difference cannot be adjusted by
friendly conference and mutual concession, the sense of the constituent
body, brought into the government through the ordinary elective channels,
may supply a remedy. And if this resource should fail, there remains in the
third and last place, that provident article in the constitution itself, by
which an avenue is always open to the sovereignty of the People for
explanations or amendments as they might be found indispensable.
If, in the present instance, it was to be particularly regretted, that the
existing difference of opinion had arisen; every motive to the regret, was a
motive to calmness, to candor, and the most respectful delicacy towards the
other constituted authority. On the other hand, the duty which the House of
Representatives must feel to themselves and to their constituents, required
that they should examine the subject with accuracy, as well as with candor,
and decide on it with firmness, as well as with moderation.
In this temper he should proceed to make some observations on the message
before the committee, and on the reasons contained in it.
The message related to two points: first, the application made for the
papers; secondly the constitutional rights of Congress and of the House of
Representatives, on the subject of treaties.
On the first point, he observed that the right of the house to apply for any
information they might want, had been admitted by a number in the minority,
who had opposed the exercise of the right in this particular case. He
thought it clear that the house must have a right, in all cases, to ask for
information, which might assist their deliberations on subjects submitted to
them by the constitution; being responsible nevertheless for the propriety
of the measure. He was as ready to admit, that the executive had a right
under a due responsibility also, to withhold information, when of a nature
that did not permit a disclosure of it at the time. And if the refusal of
the President had been founded simply on a representation, that the state of
the business within his department, and the contents of the Papers asked
for, required it, although he might have regretted the refusal, he should
have been little disposed to criticize it. But the message had contested
what appeared to him a clear and important right of the house; and stated
reasons for refusing the papers, which, with all the respect he could feel
for the executive, he could not regard as satisfactory or proper.
One of the reasons, was, that it did not occur to the executive that the
papers could be relative to any purpose under the cognizance, and in the
contemplation of the house: The other was, that the purpose for which they
were wanted, was not expressed in the resolution of the house.
With respect to the first, it implied that the executive was not only to
judge of the proper objects and functions of the executive department; but
also of the objects and functions of the house. He was not only to decide
how far the executive trust would permit a disclosure of information; but
how far the legislative trust could derive advantage from it. It belonged,
he said, to each department to judge for itself.
If the executive conceived that in relation to his own department, papers
could not be safely communicated, he might on that ground refuse them,
because he was the competent though a responsible judge within his own
department. If the papers could be communicated, without injury to the
objects of his department, he ought not to refuse them as irrelative to the
objects of the House of Representatives, because the House was in such cases
the only proper judge of its own objects.
The other reason of refusal was, that the use which the house meant to make
of the papers, was not expressed in the resolution.
As far as he could recollect, no precedent could be found in the records of
the house, or elsewhere, in which the particular object in calling for
information was expressed in the call. It was not only contrary to right to
require this; but it would often be improper in the house, to express the
object. In the particular case of an impeachment referred to in the message
it might be evidently improper to state that to be the object of information
which might possibly lead to it, because it would involve the preposterous
idea of first determining to impeach, and then enquiring whether an
impeachment ought to take place. Even the holding out an impeachment as a
contemplated or contingent result of the information called for, might be
extremely disagreeable in practice, as it might inflict a temporary pain on
an individual, whom an investigation of facts might prove to be innocent,
and perhaps meritorious.
From this view of the subject he could not forbear wishing that, if the
papers were to be refused, other reasons had been assigned for it. He
thought the resolutions offered by the gentleman from North Carolina, one of
which related to this subject, ought to stand on the Journal along with the
message which had been entered there. Both the resolutions were penned with
moderation and propriety. They went no farther than to assert the rights of
the house; they courted no reply; and it ought not to be supposed they could
give any offence.
The second object to which the message related, was the constitutional power
of the house on the subject of treaties.
Here again he hoped it might be allowable to wish, that it had not been
deemed necessary to take up, in so solemn a manner, a great constitutional
question, which was not contained in the resolution presented by the house,
which had been incidental only to the discussion of that resolution and
which could only have been brought into view through the inauthentic medium
of the newspapers. This however, would well account for the misconception
which had taken place as to the doctrine maintained by the majority in the
late question. It had been understood by the executive, that the house
asserted its assent to be necessary to the validity of treaties. This was
not the doctrine maintained by them. It was, he believed, fairly laid down
in the resolution proposed, which limited the power of the house over
treaties, to cases where treaties embraced legislative subjects, submitted
by the constitution, to the power of the house.
Mr. M. did not mean to go into the general merits of this question as
discussed when the former resolution was before the committee. The message
did not require it; having drawn none of its reasoning from the text of the
constitution. It had merely affirmed that the power of making treaties is
exclusively vested by the constitution in the President, by and with the
consent of the Senate. Nothing more was necessary on this point, than to
observe that the constitution had, as expressly and exclusively vested in
Congress, the power of making laws, as it had vested in the President and
Senate the power of making treaties.
He proceeded to review the several topics on which the message relied:
First, the intentions of the body which framed the constitution; Secondly,
the opinions of the state conventions who adopted it; Thirdly, the peculiar
rights and interests of the smaller states; Fourthly, the manner in which
the constitution had been understood by the executive and the foreign
nations, with which treaties had been formed; Fifthly, the acquiescence and
acts of the house on former occasions.
1. When the members on the floor, who were members of the general
convention, particularly a member from Georgia and himself, were called on
in a former debate, for the sense of that body on the constitutional
question, it was a matter of some surprize; which was much increased by the
peculiar stress laid on the information expected. He acknowledged his
surprise also at seeing the message of the executive appealing to the same
proceedings in the general convention, as a clue to the meaning of the
constitution.
It had been his purpose during the late debate to make some observations on
what had fallen from the gentlemen from Connecticut and Maryland, if the
sudden termination of the debate had not cut him off, from the opportunity.
He should have reminded them, that this was the ninth year, since the
convention executed their trust, and that he had not a single note in this
place, to assist his memory. He should have remarked that neither himself
nor the other members who had belonged to the federal convention, could be
under any particular obligation to rise in answer to a few gentlemen, with
information not merely of their own ideas at that period, but of the
intention of the whole body: many members of which too had probably never
entered into the discussions of the subject. He might have further remarked
that there would be the more delicacy in the undertaking, as it appeared
that a sense had been put on the constitution by some who were members of
the convention, different from that which must have been entertained by
others, who had concurred in ratifying the treaty. After taking notice of
the doctrine (of Judge Wilson, who was a member of the federal convention,
as quoted by Mr. Gallatin) from the Pennsylvania debates; he proceeded to
mention that three gentlemen who had been members of the convention were
parties to the proceedings in Charleston, S.C. which among other objections
to the treaty, represented it as violating the constitution. That the very
respectable citizen, who presided at the meeting in Wilmington, whose
resolutions made a similar complaint, had also been a distinguished member
of the body that formed the constitution. It would have been proper for him
also to have recollected what had, on a former occasion, happened to himself
during a debate in the house of representatives. When the bill for
establishing a national bank was under consideration, he had opposed it as
not warranted by the constitution, and incidentally remarked that his
impression might be stronger, as he remembered that in the convention, a
motion was made and negatived for giving Congress a power to grant charters
of incorporation. This slight reference to the convention, he said was
animadverted on by several in the course of the debate, and particularly by
a gentleman from Massachusetts, who had himself been a member of the
convention, and whose remarks were not unworthy the attention of the
committee. Here Mr. M. read a paragraph in Mr. Gerry's speech, from the
Gazette of the United States, p. 814, protesting in strong terms, against
arguments drawn from that source.
Mr. M. said he did not believe a single instance could be cited in which the
sense of the convention had been required or admitted as material, in any
constitutional question. In the case of the bank, the committee had seen how
a glance at that authority had been treated in this house. When the question
on the suability of the states was depending on the supreme court, he asked
whether it had ever been understood that the members of the bench who had
been members of the convention, were called on for the meaning of the
convention on that very important point; although no constitutional question
would be presumed more susceptible of elucidation from that source.
He then adverted to that part of the message which contained an extract from
the journal of the convention, shewing that a proposition "that no treaty
should be binding on the United States, which was not ratified by law," was
explicitly rejected. He allowed this to be much more precise than any
evidence drawn from the debates in the convention, or resting on the memory
of individuals. But admitting the case to be as stated, of which he had no
doubt, altho' he had no recollection of it; and admitting the record of the
convention to be the oracle that ought to decide the true meaning of the
constitution, what did this abstract vote amount to? Did it condemn the
doctrine of the majority? So far from it, that as he understood their
doctrine, they must have voted as the convention did: For they do not
contend that no treaty shall be operative without a law to sanction it; on
the contrary they admit that some treaties will operate without this
sanction; and that it is no further applicable in any case, than where
legislative objects are embraced by treaties. The term ratify also deserved
some attention, for altho' of loose signification in general, it had a
technical meaning different from the agency claimed by the house on the
subject of treaties.
But, after all, whatever veneration might be entertained for the body of men
who formed our constitution, the sense of that body could never be regarded
as the oracular guide in the expounding the constitution. As the instrument
came from them, it was nothing more than the draught of a plan, nothing but
a dead letter, until life and validity were breathed into it, by the voice
of the people, speaking through the several state conventions. If we were to
look therefore, for the meaning of the instrument, beyond the face of the
instrument, we must look for it not in the general convention, which
proposed, but in the state conventions, which accepted and ratified the
constitution. To these also the message had referred, and it would be proper
to follow it.
2. The debates of the conventions in three states, Pennsylvania, Virginia,
and N. Carolina, had been before introduced into the discussion of this
subject, and were he believed the only publications of the sort which
contained any lights with respect to it. He would not fatigue the committee
with a repetition of the passages then read to them. He would only appeal to
the committee to decide whether it did not appear from a candid and
collected view of the debates in those conventions, and particularly in that
of Virginia that the treaty making power was a limited power; and that the
powers in our constitution, on this subject, bore an analogy to the powers
on the same subject, in the government of G. Britain. He wished as little as
any member could, to extend the analogies between the two governments. But
it was clear that the constituent parts of two governments might be
perfectly heterogenous, and yet the powers be similar. At once to illustrate
his meaning, and give a brief reply to some arguments on the other side,
which had heretofore been urged with ingenuity and learning, he would
mention as an example, the power of pardoning offences. This power was
vested in the President. It was a prerogative also of the British king. And
in order to ascertain the extent of the compound and technical term "pardon"
in our constitution; it would not be irregular to search into the meaning
and exercise of the power in Great Britain; yet where is the general analogy
between an hereditary sovereign, not accountable for his conduct, and a
magistrate, like the President of the United States, elected for four years,
with limited powers, and liable to impeachment for the abuse of them.
In referring to the debates of the state conventions as published, he wished
not to be understood as putting entire confidence in the accuracy of them.
Even those of Virginia which had been probably taken down by the most
skilful hand, (whose merit he wished by no means to disparage) contained
internal evidences in abundance of chasms, and misconceptions of what was
said.
The amendments proposed by the several conventions, were better authority
and would be found on a general view to favour the sense of the constitution
which had prevailed in this house. But even here it would not be reasonable
to expect a perfect precision and system in all their votes and proceedings.
The agitations of the public mind on that occasion, with the hurry and
compromise which generally prevailed in settling the amendments to be
proposed, would at once explain and apologize for the several apparent
inconsistencies which might be discovered. He would not undertake to say
that the particular amendment referred to in the message by which two states
required that "no commercial treaty should be ratified without the consent
of two thirds of the whole number of Senators; and that no territorial
rights &c. should be ceded without the consent of three fourths of the
members of both houses" was digested with an accurate attention to the whole
subject. On the other hand it was no proof that those particular conventions
in annexing these guards to the treaty power understood it as different from
that espoused by the majority of the house. They might consider Congress as
having the power contended for over treaties stipulating on Legislative
subjects, and still very consistently wish for the amendment they proposed.
They might not consider the territorial rights and other objects for which
they required the concurrence of three fourths of the members of both
houses, as coming within any of the enumerated powers of Congress, and
therefore as not protected by that control over treaties. And although they
might be sensible that commercial treaties were under that controul, yet as
they would always come before Congress with great weight after they passed
through the regular forms and sanctions of the treaty department, it might
be deemed of real importance that the authority should be better guarded
which was to give that weight to them. He asked whether it might not happen,
even in the progress of a treaty through the treaty department, that each
succeeding sanction might be given, more on account of preceding sanctions
than of any positive approbation? And no one could doubt therefore that a
treaty which had received all these sanctions would be controuled with great
reluctance by the Legislature; and consequently that it might be desirable
to strengthen the barriers against making improper treaties, rather than
trust too much to the Legislative controul over carrying them into effect.
But said Mr. M. it will be proper to attend to other amendments proposed by
the ratifying conventions, which may throw light on their opinions and
intentions on the subject in question. He then read from the Declaration of
Rights proposed by Virginia to be prefixed to the constitution, the 7th
article as follows.
"That all power of suspending laws, or the execution of laws by any
authority without the consent of the Representatives of the people in the
Legislature, is injurious to their rights, and ought not to be exercised."
The convention of North Carolina, as he shewed, had laid down the same
principle in the same words. And it was to be observed that in both
conventions, the article was under the head of a declaration of rights,
"asserting and securing from encroachment the essential and inalienable
rights of the people" according to the language of the Virginia convention;
and "asserting and securing from encroachment the great principles of civil
and religious liberty, and the inalienable rights of the people" as
expressed by the convention of North Carolina. It must follow, that these
two conventions considered it as a fundamental and inviolable and universal
principle in free governments, that no power could supercede a law without
the consent of the Representatives of the people in the Legislature.
In the Maryland convention also, it was among the amendments proposed, tho'
he believed not decided on, "that no power of suspending laws, or the
execution of laws, unless derived from the Legislature, ought to be
exercised or allowed."
The convention of North Carolina had further explained themselves on this
point, by their 23d amendment proposed to the constitution, in the following
words, "That no treaties which shall be directly opposed to the existing
laws of the United States in Congress assembled, shall be valid until such
laws shall be repealed, or made conformable to such treaty; nor shall any
treaty be valid which is contradictory to the constitution of the United
States."
The latter part of the amendment, was an evidence that the amendment was
intended to ascertain, rather than to alter the meaning of the constitution;
as it could not be supposed to have been the real intention of the
constitution that a treaty contrary to it should be valid.
He proceeded to read the following amendments accompanying the ratifications
of state conventions.
The N. York convention had proposed,
"That no standing army or regular troops shall be raised or kept up in time
of peace without the consent of two thirds of the Senators and
Representatives in each house."
"That no money be borrowed on the credit of the United States without the
assent of two thirds of the Senators and Representatives in each house."
"That the Congress shall not declare war without the concurrence of two
thirds of the Senators and Representatives present in each house."
The N. Hampshire convention had proposed,
"That no standing army shall be kept up in time of peace unless with the
consent of three quarters of the members of each branch of Congress." In the
Maryland convention a proposition was made in the same words.
The Virginia convention had proposed,
"That no navigation law, or law regulating commerce shall be passed without
the consent of two thirds of the members present in both houses."
"That no standing army or regular troops shall be raised or kept up in time
of peace, without the consent of two thirds of the members present in both
houses."
"That no soldier shall be enlisted for any longer term than four years,
except in time of war, and then for no longer term than the continuance of
the war."
The convention of N. Carolina had proposed the same three amendments in the
same words.
On a review of these proceedings may not, said he, the question be fairly
asked, whether it ought to be supposed that the several conventions, who
shewed so much jealousy with respect to the powers of commerce, of the
sword, and of the purse, as to require for the exercise of them, in some
cases two thirds, in others three fourths, of both branches of the
Legislature, could have understood that by the treaty clauses in the
constitution they had given to the President and Senate, without any
controul whatever from the House of Representatives, an absolute and
unlimited power over all those great objects?
3. It was with great reluctance, he said, that he should touch on the third
topic, the alledged interest of the smaller states in the present question.
He was the more unwilling to enter into this delicate part of the
discussion, as he happened to be from a state which was in one of the
extremes in point of size. He should limit himself therefore to two
observations. The first was, that if the spirit of amity and mutual
concession from which the constitution resulted, was to be consulted on
expounding it, that construction ought to be favoured, which would preserve
the mutual controul between the Senate and the House of Representatives,
rather than that which gave powers to the Senate not controulable by, and
paramount over those of the House of Representatives, whilst the House of
Representatives could in no instance exercise their powers without the
participation and controul of the Senate. The second observation was that
whatever jealousy might have unhappily prevailed between the smaller and
larger states, as they had most weight in one or other branch of the
government, it was a fact, for which he appealed to the journals of the old
congress from its birth to its dissolution, and to those of the Congress
under the present government, that in no instance would it appear from the
yeas and nays, that a question had been decided by a division of the votes
according to the size of the States. He considered this truth as worthy of
the most pleasing and consoling reflection, and as one that ought to have
the most conciliating and happy influence on the temper of all the states.
4. A fourth argument in the message was drawn from the manner by which the
treaty power had been understood in both parties in the negotiations with
foreign powers. "In all the treaties made we have declared and they have
believed, &c." By we, he remarked, was to be understood, the executive alone
who had made the declaration, and in no respect, the House of
Representatives. It was certainly to be regretted as had often been
expressed that different branches of the government should disagree in the
construction of their powers; but when this could not be avoided, each
branch must judge for itself; and the judgment of the executive could in
this case be no more an authority overruling the judgment of the house, than
the judgment of the house, could be an authority overruling that of the
executive. It was also to be regretted, that any foreign nation should at
any time proceed under a misconception of the meaning of our constitution.
But no principle was better established in the law of nations, as well as in
common reason, than that one nation is not to be the interpreter of the
constitution of another. Each nation must adjust the forms and operation of
its own government: and all others are bound to understand them accordingly.
It had before been remarked, and it would be proper to repeat here, that of
all nations Great Britain would be least likely to object to this principle,
because the construction given to our government, was particularly
exemplified in her own.
5. In the fifth and last place, he had to take notice of the suggestion that
every House of Representatives had concurred in the construction of the
treaty power, now maintained by the Executive; from which it followed, that
the House could not now consistently act under a different construction. On
this point it might be sufficient to remark, that this was the first
instance in which a foreign treaty had been made, since the establishment of
the constitution; and that this was the first time the treaty making power
had come under formal and accurate discussion. Precedents therefore, would
readily be seen to lose much of their weight. But whether the precedents
found in the proceedings preparatory to the Algerine treaty, or in the
provisions relative to the Indian treaties, were inconsistent with the right
which had been contended for in behalf of the House, he should leave to be
decided by the committee. A view of these precedents had been pretty fully
presented to them by a gentleman from New York (Mr. Livingston) with all the
observations which the subject seemed to require.
On the whole, it appeared that the rights of the House on two great
constitutional points, had been denied by a high authority in the message
before the committee. This message was entered on the journals of the House.
If nothing was entered in opposition thereto; it would be inferred that the
reasons in the message had changed the opinion of the House, and that their
claims on those great points were relinquished. It was proper therefore that
the questions, brought fairly before the committee in the propositions of
the gentleman (Mr. Blount) from North Carolina, should be examined and
formally decided. If the reasoning of the message should be deemed
satisfactory, it would be the duty of this branch of the government to
reject the propositions, and thus accede to the doctrines asserted by the
Executive: If on the other hand this reasoning should not be satisfactory,
it would be equally the duty of the House, in some such firm, but very
decent terms, as are proposed, to enter their opinions on record. In either
way, the meaning of the constitution would be established, as far as depends
on a vote of the House of Representatives.